Excerpt:limitation act (ix of 1908), schedule i, article 121 - sale under bengal act xi of 1859--auction-purchaser, suit by, to avoid, under-tenure--limitation, commencement of--burden of proof--civil procedure code (act v of 1908), section 99, order xli, rule 27--appeal--additional evidence, admission of--reasons, failure to record, effect of--record of rights--presumption of correctness--both parties repudiating entry, effect of. - .....from the collectorate register to show the registration of his name as a proprietor of the land in suit. the judge, however, made an error in not complying with the second part of rule 27, which requires that the reasons for admitting evidence in the appellate court must be given in writing. all that he said is that it was to be filed with the record. i think, however, that the provisions of section 99 of the civil procedure code cover such a case. there is no substance in the plaintiff's suggestion that he was prejudiced by this admission, because obviously, as he was an auction-purchaser, he must have known if there were any proceedings before the commissioner which would have deferred the date when the sale became final, and, therefore, the irregularity cannot be said to affect the.....

Judgment:

Walmsley, J.

1. The plaintiff brought the suit from which the appeal arises to eject the defendant or, in the alternative, to have an assessment of fair rent in respect of the land held by the defendant, and the basis of his claim was a purchase made under the provisions of Act XI of 1859. The defendant raised various defences, one being that the suit was barred by limitation, another, that the defendant was not a tenant of the land under the plaintiff and that, therefore, the plaintiff was not entitled to either remedy. The first Court dismissed the suit so far as the prayer for ejectment was concerned but gave the plaintiff a decree for fair rent, holding that the suit was not barred by limitation and that the defendant was a tenant under the plaintiff. This decision was reversed by the learned District Judge on appeal and so far as the matter of limitation was concerned, the Judge proceeded upon a document which was put in by the defendant, then appellant, on the date on which the arguments were heard. He further held that the presumption arising from the Record of Rights had been rebutted. The arguments which were advanced in support of the plaintiff's appeal to this Court are as follows. First of all it is stated that the admission of the robahauri relating to the sale is opposed to the provisions of Order XLI, Rule 27, and, secondly, that the admission has prejudiced the plaintiff because the document was admitted at a late stage of the case and he had no opportunity of adducing evidence to show that the sale became final upon some date other than the date mentioned by the learned Judge. The third point is that having regard to the entry in the Record of Rights dated 1911 where the defendant is shown as tenant under the plaintiff, no question of limitation can arise. Now with regard to the admission of the ruabakari it appears to me that the learned Judge was quite correct in allowing this additional evidence to be produced. The suit by the plaintiff as an auction-purchaser is governed by Article 121 of the Indian Limitation Act and I think that when the defendant raised a plea that the suit was not brought within 12 years from the date when the sale had become final and conclusive, the plaintiff should have produced evidence to show when as a matter of fact the sale did become final and conclusive, and it was not enough for him to produce an extract from the Collectorate Register to show the registration of his name as a proprietor of the land in suit. The Judge, however, made an error in not complying with the second part of Rule 27, which requires that the reasons for admitting evidence in the Appellate Court must be given in writing. All that he said is that it was to be filed with the record. I think, however, that the provisions of Section 99 of the Civil Procedure Code cover such a case. There is no substance in the plaintiff's suggestion that he was prejudiced by this admission, because obviously, as he was an auction-purchaser, he must have known if there were any proceedings before the Commissioner which would have deferred the date when the sale became final, and, therefore, the irregularity cannot be said to affect the merits of the case. That disposes of the argument with regard to the additional evidence and the question of limitation based on Article 121.

2. It is urged, however, that the entry in the Record of Rights made in 1911 absolves the plaintiff from the necessity of bringing his suit within 12 years from the date of the purchase, on the ground that the defendant was then regarded as a tenant under the plaintiff and he cannot raise a plea of limitation against his landlord. The view taken by the learned Judge is that the presumption arising from the Record of Rights has been rebutted and this view appears to me to be correct. It is pointed out to us on behalf of the respondent that in the plaint the plaintiff has alleged that there was no relationship of landlord and tenant and that the defendant had taken forcible possession of the land in suit and had never paid rent. The defendant on the other hand in his written statement said that he was never in possession of the land as tenant under the plaintiff. When both sides repudiated the entry in the Record of Rights. I fail to see how it can be said that the presumption had not been rebutted.

3. In my opinion this argument fails also, and that being so, the appeal fails and must be dismissed with costs.